New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration

Complex Lit Blog

Sanctions — Order Finding Lawyer Violated Ethical Rule Is Appealable Even Though Unaccompanied by Formal Reprimand or Monetary Penalty

From Adams v. Ford Motor Co., 2011 U.S. App. LEXIS 16127 (3d Cir. Aug. 5, 2011): Vincent A. Colianni appeals from the magistrate judge's order finding that he violated ABA Model Rule of Professional Conduct Rule 3.5 by initiating post-verdict contact with a juror. *** Appellant Yolanda Adams filed suit in the District Court of t ...
From Adams v. Ford Motor Co., 2011 U.S. App. LEXIS 16127 (3d Cir. Aug. 5, 2011): Vincent A. Colianni appeals from the magistrate judge’s order finding that he violated ABA Model Rule of Professional Conduct Rule 3.5 by initiating post-verdict…
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Standard for Discovery of Mediation Communications = Standard for Relief from a Protective Order — Note Alternative of Targeted Discovery and Seeming Openness to Interrogatories or Depositions to Obtain Same Evidence

From Savage & Assocs., PC v. K&L Gates LLP, 640 F.3d 53 (2d Cir. 2011): Appeal and cross-appeal from an order of the United States District Court for the Southern District of New York (Castel, J.) affirming the order of the bankruptcy court (Bernstein, C.B.J.), which denied K&L Gates LLP's ("K& L Gates") motion to lift two protective ord ...
From Savage & Assocs., PC v. K&L Gates LLP, 640 F.3d 53 (2d Cir. 2011): Appeal and cross-appeal from an order of the United States District Court for the Southern District of New York (Castel, J.) affirming the order of…
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Unsolicited Email Received from Someone Whom the Recipient Has Never Been in Contact with Not Sufficiently Authenticated (Linked to Sender) Simply by Recipient’s Testimony

From Jimena v. UBS AG Bank, Inc., 2011 U.S. Dist. LEXIS 68560 (E.D. Cal. June 24, 2011): "When a letter, signed with the purported signature of X, is received 'out of the blue,' with no previous correspondence, the traditional 'show me' skepticism of the common law prevails, and the purported signature is not sufficient as authenticatio ...
From Jimena v. UBS AG Bank, Inc., 2011 U.S. Dist. LEXIS 68560 (E.D. Cal. June 24, 2011): “When a letter, signed with the purported signature of X, is received ‘out of the blue,’ with no previous correspondence, the traditional ‘show…
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Seventh Circuit Rules that a Letter Satisfies the Motion Requirement of Rule 11(c)(1)(A) and that Post-Judgment Motion Is Timely Despite Safe Harbor (Circuit Split)

From Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 2011 U.S. App. LEXIS 15537 (7th Cir. July 28, 2011): Before taking up the merits of Gateway's argument for sanctions, we address certain concerns raised below and reiterated here that the motion for sanctions was procedurally defective. Rule 11(c)(2) provides that a motion fo ...
From Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 2011 U.S. App. LEXIS 15537 (7th Cir. July 28, 2011): Before taking up the merits of Gateway’s argument for sanctions, we address certain concerns raised below and…
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Removing Defendant May Be Awarded Fees under § 1447(c) for Frivolous Removal Caused by Plaintiff’s Misconduct

From Micrometl Corp. v. Tranzact Techs., Inc., 2011 U.S. App. LEXIS 17693 (7th Cir. Aug. 24, 2011): After Micrometl Corp. filed suit in state court against Tranzact Technologies, Inc., alleging overbillings in excess of $100,000, Tranzact removed to federal court. The parties are of diverse citizenship, and so jurisdiction appeared secu ...
From Micrometl Corp. v. Tranzact Techs., Inc., 2011 U.S. App. LEXIS 17693 (7th Cir. Aug. 24, 2011): After Micrometl Corp. filed suit in state court against Tranzact Technologies, Inc., alleging overbillings in excess of $100,000, Tranzact removed to federal court.…
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No Rule 11 Sanctions for Cat-and-Mouse Evasion of Service or Failure to File Answer, but Inherent Power Sanctions May Be Warranted

From Ali v. Tolbert, 636 F.3d 622 (D.C. Cir. 2011): By its terms, Rule 11 applies to "[r]epresentations to the Court" made in "presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper." Fed R. Civ. P. 11(b) (2006). In Hilton Hotels Corp. v. Banov, 899 F.2d 40, 283 ...
From Ali v. Tolbert, 636 F.3d 622 (D.C. Cir. 2011): By its terms, Rule 11 applies to “[r]epresentations to the Court” made in “presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or…
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Counsel’s Orally Reading to SEC Her Notes of Internal Investigation Interviews Waived Work Product Protection Even Though Done Pursuant to Confidentiality Agreement

From Securities and Exchange Commission v. Vitesse Semiconductor Corp., 2011 U.S. Dist. LEXIS 77538 (S.D.N.Y. July 13, 2011): [N]on-party Nu Horizons Electronic Corporation ("NuHo") moved to quash the subpoenas issued by defendants Tomasetta and Hovanec requesting the production of handwritten notes taken during NuHo's internal investig ...
From Securities and Exchange Commission v. Vitesse Semiconductor Corp., 2011 U.S. Dist. LEXIS 77538 (S.D.N.Y. July 13, 2011): [N]on-party Nu Horizons Electronic Corporation (“NuHo”) moved to quash the subpoenas issued by defendants Tomasetta and Hovanec requesting the production of handwritten…
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Inherent Power and § 1927 Sanctions Are Punitive as Well as Deterrent and Therefore May Exceed the Amount Required for Deterrence

From Stalley v. Mountain States Health Alliance, 2011 U.S. App. LEXIS 13895 (6th Cir. July 8, 2011) (affirming district court opinion excerpted in our post of February 11, 2010): Stalley contends that the district court did not "explain[] why all of the fees and expenses incurred [by Defendants'] law firm . . . had to be awarded to assu ...
From Stalley v. Mountain States Health Alliance, 2011 U.S. App. LEXIS 13895 (6th Cir. July 8, 2011) (affirming district court opinion excerpted in our post of February 11, 2010): Stalley contends that the district court did not “explain[] why all…
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RICO Pattern — Nine-Month Scheme by Employee Lacks Continuity — Sole Victim Is Company — Harmed ESOP Participants Not Cognizable Victims — Good Quote (Anti-Mail Fraud Predicate)

From Whitney, Bradley & Brown, Inc. v. Kammermann, 2011 U.S. App. LEXIS 12841 (4th Cir. June 23, 2011): WBB is a federal government contractor, headquartered in Reston, Virginia, that facilitates business relationships between private enterprise and the Department of Defense. WBB continuously employed Kammermann as a manager from May 20 ...
From Whitney, Bradley & Brown, Inc. v. Kammermann, 2011 U.S. App. LEXIS 12841 (4th Cir. June 23, 2011): WBB is a federal government contractor, headquartered in Reston, Virginia, that facilitates business relationships between private enterprise and the Department of Defense.…
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Recent Posts

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

RICO Causation: (1) State’s Misrepresentation to Federal Government That It Was Providing Plaintiffs with Mandated Special Education Did Not Cause Plaintiffs’ Injury Because The Failure to Provide The Education Was Not Caused by the Fraud on the Federal Government — (2) The Three Factors for Assessing RICO Causation — (3) Limits of the Second Circuit’s Decision in Alix v. McKinsey That Causation Can Be Established Where A Fraud On The Judiciary “Or Other Governmental Entity” Resulted In A Resource Going To Someone Less Deserving

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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